Dominico Mark v TM Pick n' Pay Supermarkets

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT No: LC/H/350/25
HELD AT HARARE
CASE No: LC/H/767/25
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

In the matter between:-

JUDGMENT No: LC/H/350/25

CASE No: LC/H/767/25

DOMINICO MARK	APPELLANT

Versus

TM PICK n’ PAY SUPERMARKETS	RESPONDENT JUDGMENT

Harare 23 September 2025

Before Honourable Mr Justice Jaravani J

For the Appellant: Mr Maoneka: Trade Union Representative For the Respondent: R.T Muzonzini

Opposed Appeal.

JARAVANI J: The Appellant noted an appeal to this Court against an arbitral award that was made against him on a charge of absenteeism from work for seven or more working days without reasonable excuse. The appeal was premised on two grounds namely;

The Honourable Arbitrator misdirected himself by misinterpreting the application of ‘day off’ in terms of Statutory Instrument 45 of 1993 when counting absence from work which amounts to an error in law.

The Honourable Arbitrator further misdirected himself, which misdirection amounts to an error in law by concluding that an off day was no longer available to the Appellant whereas absenteeism only applies to working days.

The Court had requested a copy of the Appellant’s contract of employment for better information in presiding over the case but the contract could not be available for use by the Court at the time of the hearing. The parties ultimately agreed that the hearing should proceed on the basis of the documents on record after deliberating on the best course of action to take on the issue of the Appellant’s contract of employment.

Statement of Issues

The undisputed facts in the arbitral award are that the Appellant did not report for duty at the workplace from 20 up to 26 January 2024 and he never obtained any recognized form of leave of absence from his workplace before he went away from the workplace.

What is in dispute are the legal implications of his absence during the said period specifically in view of the fact that he claims that one of the days during the period of his absence, namely; 25 January 2024 was his off-day so he was not absent for seven working days as alleged by the Respondent when it preferred the misconduct charge in issue against him.

In the award which is subject to the present appeal, the Arbitrator found that an employee qualifies for an off-day after having worked continuously for six days so the Appellant was not entitled to an off-day since he was absent from work without a reasonable excuse. For that reason the Arbitrator held that the purported off-day which was supposed to accrue in favour of the Appellant on 25 January 2024 was no longer available to him. The Arbitrator relied on Clause 5(4) of the Collective Bargaining Agreement for the Commercial Sectors (‘hereinafter the ‘CBA’) Statutory Instrument 45 of 1993 which provides that;-

‘No employer shall permit an employee to work for more than six days in one week’

The Appellant opposed the Arbitrator’s award and its underlying justification while the Respondent supported it. It is pertinent to note that both parties relied on the same provisions of the CBA but to come up with different results in support of their respective cases.

Parties’ Submissions

The Appellant submitted that he was absent for six days only since one of the days he did not report for work during the period of the admitted absence, namely; 25 January 2024, was his off-day. He consequently argued that it was therefore incompetent for the Respondent to prefer a charge of absenteeism from work for seven or more working days without reasonable excuse. The appropriate charge, according to the Appellant, could have been for a Group III offence under the Code of conduct annexed as the 5th Schedule to the CBA namely; absence from work for four or more working days but less than seven working days without reasonable excuse. The Appellant further submitted that a Group III charge could have resulted in a more lenient penalty in the form of a Final Written Warning for a First breach according to the penal Schedule in Group III of the Code of Conduct rather than the instant dismissal on first breach which he got under Group IV of the Code of Conduct. The Appellant referred to an Extract of the Duty Roster filed of record in support of his submission that 25 January 2024 was his day-off.

Per contra, the Respondent submitted that the Arbitrator did not misdirect himself because an employee becomes entitled to a statutory rest only after having performed six consecutive days of actual work per week. The Respondent also relied on the same provisions of the Code to come up with this interpretation. None of the parties managed to obtain any caselaw or other legal authority which specifically addresses the issue of whether an employee who is on unauthorized leave without reasonable excuse accrues an off-day.

Issues for Determination

The Appellant premised its appeal on two grounds but the Court is of the view that Ground of Appeal 2 is a clear corollary of Ground of Appeal 1. The dispute between the parties is based on their different interpretation of the provisions of the CBA in the computation of the duration of the Appellant’s unauthorized absence from work. In more precise terms, the Court perceives the sole issue for determination as; whether an employee who is absent from duty without reasonable excuse is entitled to an off-day which accrues during the period of unauthorized absence?.

Analysis

The CBA has no provision which expressly addresses the issue to be determined in the present case. Neither was any caselaw authority on the issue supplied by the parties or obtained by the Court. The Court will merely rely on the interpretation of the relevant provisions of the CBA. The relevant provisions of the CBA are as follows;-

Clause 3: Interpretation

‘day off’ or ‘days off’ means, in the case of:-

an employee working six days per week, Sunday or that day in the week in lieu of Sunday on which the employee is not normally required to work.

an employee working five days per week, Saturday and Sunday or those days in the week in lieu of Saturday and Sunday, on which the employee is not normally required to work.

‘working day’ means any other day other than a day or days off or a holiday.’ Clause 5: Ordinary hours of work.

The relevant part of Clause 5(4) reads

‘No employer shall permit an employee to work for more than six days in one week. [….]’. 5th Schedule: Code of Conduct and Grievance Procedures

Part IV Clause 1 Group I simply defines absenteeism as unauthorized absence from work during working hours’.

Although the Appellant was charged under Group IV, the Group I definition of absenteeism gives the basic literal definition of absenteeism which is implicitly carried over to Group IV Clause 1 which makes absence from work for seven or more working days without reasonable excuse an act of misconduct which attracts a penalty of dismissal on first breach.

The Appellant interpreted the above provisions of the CBA to come up with a period of six working days of absence without reasonable excuse while the Respondent and the arbitrator interpreted the provisions to come up with a period of seven working days of absence without reasonable excuse.

The Court agrees with the interpretation of the provisions of the CBA by the Respondent and the arbitrator. The Appellant’s reliance on the Duty Roster Extract on page 23 of the record is to no avail since the Duty Roster was apparently a mere pre-prepared workplace record which is not even restricted to the period of the Appellant’s absence. The Duty Roster has a date range of 16 to 28 January 2024 while the Appellant was absent from 20 to 26 January 2024 so the Appellant cannot use it as a legal source of a right to an off-day during a period of absence without reasonable excuse.

The Court is also of the view that adopting the Appellant’s interpretation of the CBA will be contrary to the objectives of both the Code of Conduct Annexed as the 5th Schedule to the CBA and the Labour Act [Chapter 28:01]. Clause 1.2 of the Code of Conduct includes the maintenance of discipline as one of its objectives. The purpose of the Labour Act is to advance social justice and democracy in the workplace by; among other things, promoting fair labour standards- section 2A(1)(d). An interpretation of the Code which entitles an employee to a day-off which accrues during a period of absence without reasonable excuse implicitly rewards the employee for unauthorized absence contrary to the objectives of the Code of Conduct and the Labour Act.

A contextual and purposive interpretation of the CBA which considers all its relevant provisions, its objectives and the purpose of the Labour Act is proper in the circumstances. The purpose of limiting the duration of weekly work which may be rendered by employees to employers under the CBA is to protect employees from being subjected to excessive weekly work by employers as submitted by the Respondent. This interpretation resonates well with the reference to the number of days worked by an employee and the correlative identification of days when an employee is not normally required to work in the definition of ‘day off’ or ‘days off’ in Clause 3 of the CBA. This position is also buttressed by Clause 5(4) of the CBA which prescribes a six-day threshold of weekly work for employees under the CBA.

The Court is therefore of the view that the Appellant was not exposed to the harm of excessive work sought to be addressed by the relevant provisions of the Code as of 25 January 2024 so he cannot claim entitlement to an off-day since he had not rendered continuous weekly work to the Respondent for the six days which immediately preceded 25 January 2024 because he was absent from work from 20 January through 25 January to 26 January 2024.

In the premises, the Court upholds the findings of the arbitrator. There was no misdirection in the interpretation of the CBA by the arbitrator

Costs

The general rule is that costs follow the cause. The party who is unsuccessful in litigation should pay the successful party’s costs but this rule is subject to the discretion of the Court- Kangai v Netone Cellular (Pvt) Ltd 2020(1) ZLR 660(H). The Court exercises its discretion not to make an order for costs in this case despite the Respondent’s prayer for dismissal of the appeal with costs in its papers.

The Court justifies its stance on costs on the basis that the Appellant’s conduct was not culpable or vexatious in pursuing this matter since there is no immediately relevant authority on the issue that was in dispute between the parties. Furthermore, it was admitted that the Appellant never took his annual six-day Anniversary leave for the year 2023 which he sought to improperly claim resulting in the instant act of misconduct.

Disposition

In view of the foregoing, after reading the papers filed of record and hearing both parties’ submissions, the Court Orders that:-

The appeal be and is hereby dismissed.

No Order as to costs.

JARAVANI J

Appellant’s Representatives: Food Processing Workers Union Respondent’s Legal Practitioners: Honey and Blanckenberg